Obama: Back to Guantanamo (updated)

In a major policy reversal Monday, the Obama administration announced it will try accused 9/11 mastermind Khalid Sheikh Mohammed before a military tribunal at the Guantanamo Bay detention camp, not in federal court in New York City.

The issue has pitted several competing agendas since before the 2008 presidential election. From a practical standpoint, politicians in New York said a civilian trial in New York City, where the attacks took place, would make the city a heightened target for terrorism. Others said the concern applied pretty much anywhere. In New York, at least, there was bipartisan approval, of a sort. Democratic Sen. Chuck Schumer praised Obama, while Republican Rep. Peter King said it was the right decision but took the opportunity to chide Holder for taking so long.

(UPDATE: King toldFox News Channel’s “America’s Newsroom” today that it is a legitimate issue for Congress and that if Holder is so conflicted about the matter, he should resign. He was joined by Debra Burlingame, the sister of a 9/11 victim and organizer of 9/11 Families for a Safe and Strong America, who said that Holder’s comments on the military commissions could compromise their credibility internationally.)

There was also a more philosophical debate, with some saying that the civilian court system is the proper place for people who are more criminals than formal war combatants, while others said they are no different from accused war criminals. The New York Civil Liberties Union’s executive director, Donna Lieberman, said a verdict in federal court would have had “global legitimacy.”

Two attorneys debated this issue at Albany Law School last year, and wrote opposing pieces for us. The piece by Bob Keach of Amsterdam, who favors civilian trials, is here; the one by Vincent Vitkowsky of New York City, who argues for trial at Guantanamo, ishere.

From a national security standpoint, advocates of military tribunals said evidence rules in a civilian trial could lead to defendants obtaining information that could compromise intelligence efforts or jeopardize sources. Those in favor of civilian trials said such secrecy considerations can and in fact have been accommodated.

Attorney General Eric Holder’sstatement would indicate that this was done quite reluctantly, and that his side was prepared to go to trial with a “powerful” case but that Congress had backed the administration into a corner by denying funding to transfer Gitmo inmates to the United States. The administration could have fought Congress in court, to be sure. But it contends it couldn’t delay the trial any longer.

Whether this was a proper exercise of power on Congress’ part is debated even on the right, which tended to favor the military tribunal route. Here’s a podcastof a debate sponsored by the Federalist Society.

One certain outcome: Just as Obama has announced his plans for reelection, he is likely to face criticism from his more liberal supporters, who saw Guantanamo as emblematic of what they felt was the abuse of civil liberties by the Bush administration. Here’s an early reaction from Amnesty International USA’s blog.

Should accused foreign terrorists be tried in civilian or military courts?

2 Responses

The Khalid Sheikh Mohammed (KSM) trial did not really move back to Gitmo. In fact, it never left Gitmo. Obama’s announcement after he was elected that Gitmo detainees will face justice in Federal Courts was “a trial balloon” to project him as a pure statesman who wanted blind justice for both friends and enemies. But that balloon was never released to fly; it was kept tethered to the ground, and it was pricked now to coincide with Obama’s announcement of his 2012 re-election campaign! Obama craves now for an image of a tough “nationalist” leader ready to give enemies of the U.S. the hellish justice of military commissions. And KSM is the best shooting target he can get! As Schopenhauer said, “revenge is sweet.” KSM has already received tons of our justice, including 183 water-boardings, and other torture that if it has been videotaped and shown to the American public, we would have been ashamed of who we are and whom we elect in the White House! Too bad for KSM, he was arrested while he was asleep, and he didn’t have time to put a bullet in head and spare himself of all the pain humiliation and suffering he has endured since then.

Now back to Gitmo, KSM will go on a parody of trial, and then have the U.S. execute him for justice rendered – something nobody can dispute. Even KSM himsel has stated that he wants to die and become a martyr, and there is no doubt that his death would make him a martyr and an inspiration to other Muslim jihadists to avenge his demise. And his supposed re-assignment to Gitmo guarantees that outcome. At a federal court, all accusations against him – or torture forced confessions- would have been thrown out. But the Obama 2012 campaign is now hunting for anything patriotic or heroic to shore up Obama’s faltering job approval in the polls, and KSM is a high valuable quarry to roast and feed to the ordinary Americans in the platter of national security!

In short, it is a kind of pre-historic justice re-visited. The Greek historian Thucydides described this kind of justice 2.500 years ago as “The justice in which the powerful exact what they can, and the weak grant what they must [unwillingly or under force].” Now, lets wait for the trial of Sheik Khalid Mohammed to start, enjoy his repetitive lynching in our media headlines, and revel in our ability to judge our enemies under an invented “might is right” justice process that supposedly fulfills the requirement of ” fairness and justice for all” in our constitution! Nikos Retsos, retired professor

Legitimacy demands that cases such as this be tried in the International Criminal Court. One problem is that the US doesn’t subscribe to the court because the US would then have to subject itself to international law under the court’s jurisdiction. So a “second string” court, in terms of legitimacy, would be the federal court system. A Guantanamo military trial, particularly in light of all of the Wikileaks regarding US military behavior, will have no legitimacy in the eyes of anyone except for those who are willingly misled.